A recent decision by the Court of Appeal in London, handed down in November 2023, has triggered a stream of comment and debate among scholars and art historians. The case of THJ v Sheridan does not, at first glance, appear to have much at all to do with the arts sector, involving, as it did, a dispute about copyright in a GUI (graphical user interface). What, then, might have prompted this flurry of activity and merited a reference to the case in our customary round-up of the year’s major art law developments? It was the Court’s focus on the concept of originality which led some to suggest a new dawn for this key aspect of copyright law in the UK, and particularly for museums’ digital collections of public domain works.
In brief, the case arose when the defendant continued to use certain digital charts analysing financial market data created by bespoke software developed by the claimant after the termination of his licence. The defendant argued that the ‘risk and price charts’ (constituting the GUI) were not sufficiently original to attract copyright protection so he didn’t need a licence to use them in his business activities. When assessing originality, the High Court, at first instance, applied the traditional UK test of ‘skill and labour’ to conclude that there was, in fact, copyright in the relevant GUI. On appeal, the Court agreed with the defendant’s contention that the trial judge had applied the wrong test. In fact, it should have used the EU standard for originality, which requires a work to be the ‘intellectual creation’ of its author. As noted by Arnold LJ for the Appeal Court, UK copyright law is to be interpreted in accordance with the relevant EU law, which, since an important case of 2009 (Infopaq v Danske Dagblades Forening) has made it clear that copyright applies “only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation” ([para. 15], quoting directly from the Infopaq case at ). Subsequent EU cases clarified that such ‘intellectual creation’ required an author to “express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch” [para. 16].
There is no question that the appropriate test for originality weighs heavily for museums in the context of their digitisation projects and licensing practices. If their digitised images of public domain (i.e. out of copyright) two-dimensional works cannot meet the test, the justification for the familiar copyright (‘©’) symbol in the captions for such images seems to fade away. Good reason, then, for those with an interest in these matters to seize upon this recent judgment which clarifies that the correct test is the EU benchmark of ‘intellectual creation’. This requires the expression of ‘free and creative choices’ and presents a different, and arguably higher, standard than that traditionally applied by UK courts requiring nothing more than labour and skill (and, in some cases, judgment). Discussion about the recent decision, including a suggestion that it “heralds the end of UK museums charging fees to reproduce historic artworks” (a quote from a column by art historian Bendor Grosvenor in the Art Newspaper) has occupied significant space on various arts-focused newsletters and social media posts.
The judgment delivered by Arnold LJ for the Court of Appeal in this case is certainly important for copyright law in the UK. It provides clarification and confirmation on how courts should assess the concept of originality which sits at the heart of claims for copyright protection. Perhaps more nuanced, however, is exactly what impact this may have on copyright decisions for works of all types, including those digital images of public domain works at the centre of the current debates.
There are several reasons for a note of slight caution at this juncture. The first is that, as yet, we have no test case in the UK on these particular works, so the outcome of applying the EU originality test is not necessarily a forgone conclusion. Can we say, categorically, that a photograph of a Rembrandt self-portrait or one of Monet’s Water-lilies can never embody the ‘free and creative choices’ of the photographer? In some – possibly most – instances, perhaps not; and there are valid reasons to support such a view. Practically speaking, a robotic camera capturing images as it speeds along a gallery concourse could hardly meet that test. From a legal perspective too, a recent EU Copyright Directive appears to make it clear that digital images of two-dimensional works should not qualify for copyright protection: see Article 14 (and explanatory recital 53) of the 2019 Digital Single Market Directive (2019/790) (DSMD).
But a deeper dive into both those practical and legal hypotheses might suggest a murkier picture. On the practical side, if we replace our self-executing camera with a highly skilled human photographer, who sets up their tripod, arranges the lighting and uses sophisticated developing techniques to produce the highest quality reproduction, might the resulting image be protected? The THJ decision clarifies that the originality test is not met where “the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom” [para. 16]. Is the photographer’s input in the scenario described ‘dictated by technical considerations’? Or could it involve the required ‘intellectual creativity’? It is worth noting that even when the Court of Appeal applied the EU test to the GUI in question in the THJ case, the result was the same: the relatively simple ‘risk and price charts’ were indeed protected by copyright. Even though it was “plain that the degree of visual creativity .. was low”, this did “not mean that there was no creativity at all” [para. 27].
Returning to the legal perspective, the UK has not adopted the EU’s 2019 copyright directive (the DSMD described above), and is therefore not subject to the Article 14 provision which directly addresses images of public domain visual artworks. This fact alone muddies the waters as far as UK courts are concerned. Even within Europe, however, the door remains somewhat ajar for ‘material resulting from an act of reproduction’ of ‘work[s] of visual art’ for which the term of protection has expired (to use the terminology in the Article itself). Historically, certain European States have allowed for two levels of protection for photographs – full copyright for those photographic works which display the required originality, and a lesser degree of protection for more ‘simple’ (‘point and shoot’) images. Whilst Article 14 was designed to remove protection for those latter images, reproductions of public domain works of visual art which are ‘original in the sense that [they are] the author’s own intellectual creation’ (again, the very language used in Article 14) might still be protected.
Museums across the UK will undoubtedly be pondering this recent decision and how it might impact their licensing practices. This is a complex area where copyright, though fundamental, is not the only consideration for both creators and users (or prospective users) of digital images of older visual artworks. Contractual terms (based on rights and obligations outside of the copyright regime) and broader financial and operational matters will also be key factors in any decisions made or changes considered.
Whatever the strict legal position, the global trend over the past decade or so has certainly been towards greater open access and more liberal sharing of digital resources. Good examples are provided by the Rijksmuseum’s Open Data Policy and the Met’s Open Access initiative (though the financial models of such institutions which charge entry fees differ from those of UK museums with free entry, where the financial incentives for licensing might carry more weight). More broadly, however, museums of all shapes and sizes across the globe have been doubling down on their digital offerings since the pandemic. When forced to close their physical spaces, digital interactions gave museums the tools to keep things ticking over, and in some cases, even a route to survival. In this wider context, whilst the recent court decision may not draw a clear line under all the arguments around copyright restrictions on images of public domain works, it might at least give a further nudge towards providing greater open access to them.
Freepik, Young Man Going to Art Gallery, free for use under the Freepik licence.
Crown Copyright, “An example of the R & P Charts”, Bailii, 2023.